Explainer: A judge ruled the U.S. must keep expelling asylum seekers. What happens now?

[May 24, 2022] By Ted Hesson

WASHINGTON (Reuters) - The administration of U.S. President Joe Biden said it would appeal the decision of a Louisiana judge that upended its plans to end a COVID-era health order blocking most asylum seekers and other migrants at the border with Mexico.

Despite the setback, the administration is moving ahead with other changes at the border in an attempt to advance Biden's plans to better manage migrant arrivals, including rolling out a new rule that aims to speed up the processing of asylum claims next week.

WHAT WILL HAPPEN TO THE COVID BORDER RESTRICTIONS?

A federal judge in Louisiana ruled on Friday that the U.S. Centers for Disease Control and Prevention (CDC) cannot immediately proceed with a plan to end the so-called "Title 42" border restrictions by May 23.

Biden, a Democrat, is seeking to overturn that ruling at the 5th U.S. Circuit Court of Appeals.

The lawsuit arose after a coalition of two dozen states with Republican attorneys general sued to block the plan to end the order, which was put in place in March 2020 by former President Donald Trump, a Republican.
 

The conservative-leaning 5th Circuit ruled against the Biden administration late last year when it attempted to end a separate Trump-era program informally known as "remain in Mexico" that forced migrants to wait in Mexico while pursuing U.S. asylum cases.

The Supreme Court heard oral arguments over the dispute in April and is expected to rule by the end of June.

WHAT WILL HAPPEN TO MIGRANT FAMILIES SEEKING ASYLUM NOW?

Under U.S. immigration law, migrants are permitted to apply for asylum if they are deemed to have a "credible fear" of persecution in their home country. The United States on Monday began providing court-ordered screenings to determine whether certain migrant families seeking protection should be exempted from Title 42, according to a U.S. Department of Homeland Security (DHS) spokesperson.

The screenings follow a March ruling by the U.S. Court of Appeals for the District of Columbia Circuit in a separate case that said migrant families subjected to Title 42 could not be expelled to places where they could be persecuted or tortured.

DHS and the American Civil Liberties Union, which was among the organizations that brought the D.C. lawsuit, did not yet provide additional details on the screenings.

Biden exempted unaccompanied minors from Title 42 expulsions shortly after he took office last year.

"Single adults and families encountered at the southwest border continue to be expelled, where appropriate, under the CDC's Title 42 public health authority," the DHS spokesperson said.

WHAT BIDEN BORDER PLANS ARE MOVING AHEAD?

At least one major Biden initiative is still moving ahead: The administration plans to implement a new regulation next week that would speed up the processing of asylum claims, according to a DHS official who spoke on the condition of anonymity.

While a slim majority of migrants caught by U.S. Border Patrol agents are expelled under Title 42, about 48% were allowed into the country to pursue their claims during the first seven months of fiscal year 2022, which began Oct. 1, according to data from U.S. Customs and Border Protection (CBP).

Migrants walk across the Reynosa-Hidalgo International Border Bridge after staying in Mexico under the coronavirus disease (COVID-19) restrictions known as Title 42 and being accepted by the U.S. government with legal assistance, in Reynosa, Mexico May 23, 2022. REUTERS/Daniel Becerril

The new process will allow U.S. asylum officers to adjudicate claims directly instead of sending them to backlogged federal immigration courts where a decision can take years. The Biden administration says the change could allow the cases to be completed in months.

The rollout will begin slowly, with the aim of processing 500 recently arrived migrants over the first 60 days, the DHS official said.

The migrants will be detained in two Texas detention centers until they receive an interview with an asylum officer to determine whether they have a "credible fear" of persecution in their home countries, the official said. Under U.S. asylum law, the persecution must be based on race, religion, nationality, membership in a particular social group, or political opinion.

The asylum officer will then conduct a more complete interview within 45 days, according to the rule. Migrants who do not qualify for asylum or other forms of humanitarian relief could be deported.

A coalition of states with Republican attorneys general sued to block Biden's new asylum rule last month, arguing it violates both immigration and regulatory laws. A hearing in that case is scheduled for late June.

The state of Texas has also filed its own lawsuit seeking to halt the rule.

WHAT BORDER PLANS HAVE BEEN PUT ON HOLD?

The Biden administration will likely delay a plan to encourage migrants near the U.S.-Mexico border to use an online app to schedule a time to approach a legal port of entry and claim asylum, a DHS official told Reuters.

Last summer, the app, known as CBP One, was used to process in some 12,000-13,000 migrants who sought humanitarian exceptions to the Title 42 order with the assistance of non-governmental organizations, the official said.

WILL THE BIDEN ADMINISTRATION NEED MORE BORDER FUNDING?
 

DHS officials have internally pressed the White House to request more funding for border operations this year, an administration official told Reuters.

The request could range from an additional $1.2 billion to $2 billion depending on the number of migrants arriving at the border on top of the $1.4 billion appropriated by Congress for border operations this year.

U.S. Border Patrol agents arrested a record number of migrants attempting to cross the border last year and numbers are expected to climb even higher this year.

However, it remains unclear whether the administration will request additional money since the department could first seek to reroute some existing funds to border operations.

The DHS spokesperson declined to comment on internal discussions about funding, but said that "should additional resources be necessary, DHS will work with the White House to engage Congress."

(Reporting by Ted Hesson in Washington; Additional reporting by Kristina Cooke in San Francisco; Editing by Mica Rosenberg and Aurora Ellis)

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